IN THE CASE OF: 

		BOARD DATE: 17 January 2024

		DOCKET NUMBER: AR20230007839


APPLICANT REQUESTS:  reconsideration of his previous request for an upgrade of his 
under other than honorable conditions discharge. He also requests a personal 
appearance 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR20120005549, on 23 October 2012. 

2.  The applicant states he was unfairly judged because of his mental state of mind at 
the time. He believes an error, or an injustice occurred because of his mental and 
physical conditions at the time, and his low education level. 

3.  Review of the applicant’s service records shows:

	a.  The applicant enlisted in the Regular Army on 16 August 1976. His enlistment 
documents indicate he had completed 12 years of education. He completed training and 
was awarded military occupational specialty 11B, Infantryman. 

	b.  He served in Germany from around November 1976 to around March 1977. On 
21 and 27 January 1977, he received nonjudicial punishments under the provisions 
Article 15, Uniform Code of Military Justice (UCMJ) for missing formation.  

	c.  On 22 March 1977, the applicant’s unit reported him in an absent without leave 
(AWOL) and on 20 April 1977, he was dropped from the rolls as a deserter. He returned 
to military control (surrendered) on 24 June 1977. 

	d.  On 27 June 1977, court-martial charges were preferred against the applicant for 
violation of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with 
one specification of AWOL from 22 March to 24 June 1977.  

	e.  On 28 June 1977, the applicant consulted with legal counsel. He was advised of 
the basis for the contemplated trial by court-martial, the maximum permissible 
punishment authorized under the UCMJ, the possible effects of an under other than 
honorable conditions discharge, and the procedures and rights that were available to 
him. After receiving legal counsel, the applicant voluntarily requested discharge under 
the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 10, in lieu of court-martial. In his request for discharge, the 
applicant stated/acknowledged/understood: 

		(1)  He stated he was making this request of his own free will and had not been 
subjected to any coercion whatsoever by any person. He has been advised of the 
implications that are attached to it.

		(2)  He acknowledged that by submitting this request for discharge, he 
understood the elements of the offenses charged and that he was guilty of the charges 
against him or of a lesser offense which also authorizes the imposition of a bad conduct 
or dishonorable discharge. 

		(3)  He stated that under no circumstances does he desire further rehabilitation, 
for he has no desire to perform further military service.

		(4)  He acknowledged he understood that if his discharge request was approved, 
he could be deprived of many or all Army benefits, he could be ineligible for many or all 
benefits administered by the Veterans Administration, and he could be deprived of his 
rights and benefits as a veteran under both Federal and State laws.

		(5)  He elected not to submit a statement in his own behalf, and he also elected 
not to undergo a physical evaluation prior to separation. 

	f.  The applicant’s immediate commander recommended approval and issuance of a 
discharge under other than honorable conditions. He stated the applicant’s conduct has 
rendered him triable by court­ martial under circumstances which could lead to a bad 
conduct or dishonorable discharge. The applicant has become disillusioned with the 
military. Further retention of this individual would not be in the best interest of the Army. 

	g.  On 6 July 1977, the separation authority approved the applicant's request for 
discharge, under the provisions of AR 635-200, Chapter 10, in lieu of court-martial, and 
directed his reduction to the lowest enlisted grade, if applicable, and the issuance of a 
under other than honorable conditions discharge.
	h.  The applicant was discharged on 13 July 1977. His DD Form 214 (Report of 
Separation from Active Duty) confirms he was discharged in the lowest enlisted grade 
under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial 
(Separation Code JFS, Reentry Code 3B) and his service was characterized as under 
other than honorable conditions. His DD Form 214 shows he completed 7 months and 
25 days of active service, with 110 days of lost time, 94 days of which is under Title 10, 
U.S. Code section 972. 

	i.  On 8 June 1983 the Army Discharge Review Board denied his request for 
upgrade of his discharge after that board found his discharge proper and equitable. 

4.  On 23 October 2012, the ABCMR considered and denied the applicant’s request for 
an upgrade of his discharge. The Board stated: 

	a.  There is no available evidence to substantiate the applicant's assertions that 
physical problems and associated stress were related to his AWOL. He contends that 
he thinks that if he had a better understanding of the ramifications of the discharge, that 
he would have finished his enlistment. However, it is quite probable that he would have 
stood trial for his AWOL and received severe punishment, perhaps a punitive discharge. 
The applicant's request for a chapter 10 discharge, even after appropriate and proper 
consultation with a military lawyer, tends to show he wished to avoid the court-martial 
and the punitive discharge that he might have received.

	b.  The applicant's administrative separation was accomplished in compliance with 
applicable regulations with no indication of procedural errors which would tend to 
jeopardize his rights. The type of discharge directed, and the reasons therefore were 
appropriate considering all the facts of the case

5.  By regulation (AR 635-200), Chapter 10, a member who has committed an offense 
or offenses for which the authorized punishment includes a punitive discharge may, 
submit a request for discharge for the good of the service in lieu of trial by court-martial. 
The request may be submitted at any time after charges have been preferred and must 
include the individual's admission of guilt. A discharge under other than honorable 
conditions is normally considered appropriate.

6.  In reaching its determination, the Board can consider the applicant’s petition and his 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

7.  By regulation (AR 635-5-1), Separation Code KFS is the correct Separation Code 
assigned to Soldiers being separated under chapter 10 of AR 635-200 by reason of In 
Lieu of Trial by Court-Martial.

8.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting reconsideration of his previous 
request for an upgrade of his under other than honorable conditions (UOTHC) 
characterization of service. He contends he had mental health conditions and low 
educational level that mitigated his misconduct. 
    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The 
applicant was enlisted in the Regular Army on 16 August 1976; 2) On 27 June 1977, 
court-martial charges were preferred against the applicant for one specification of 
AWOL from 22 March to 24 June 1977; 3) The applicant was discharged on 13 July 
1977, Chapter 10, in lieu of trial by court-martial and his service was characterized as 
under other than honorable conditions. 
    c.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and available military service records. The VA’s Joint Legacy Viewer (JLV) 
was also examined. No additional medical documentation was provided for review.
    d.  The applicant noted mental health conditions and low educational level as 
contributing and mitigating factors in the circumstances that resulted in his separation. 
Military records indicate the applicate completed 12 years of education, and there was 
no indication the applicant reported mental health symptoms while on active service. A 
review of JLV provided insufficient evidence the applicant has been diagnosed with a 
service-connected mental health condition or been identified as having a low 
intelligence or academic level. 
    e.  Based on the available information, it is the opinion of the Agency BH Advisor that 
there is insufficient evidence to support the applicant had condition or experience that 
mitigated his misconduct. 
Kurta Questions
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the 
discharge? Yes, the applicant contends he was experiencing mental health conditions 
and low educational level that contributed to his misconduct. 

    (2)  Did the condition exist or experience occur during military service?  Yes, the 
applicant reports experiencing mental health conditions and low educational level while 
on active service.

    (3)  Does the condition experience actually excuse or mitigate the discharge? No, 
there is insufficient evidence beyond self-report the applicant was experiencing a mental 
health condition or low educational level while on active service. The applicant did go 
AWOL, which can be a sequalae to some mental health conditions, but this is not 
sufficient to establish a history of a condition during active service.  However, the 
applicant contends he was experiencing a mental health condition and low educational 
level that mitigated his misconduct, and per Liberal Consideration his contention is 
sufficient for the board’s consideration.     


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service.  Upon review of 
the applicant’s petition, available military records and the medical review, the Board 
concurred with the advising official finding insufficient evidence to support the applicant 
had condition or experience that mitigated his misconduct.  The Board noted, the record 
is absent evidence beyond self-report that the applicant was experiencing a mental 
health condition or low educational level while on active service. 

2.  The applicant provided no evidence of post-service achievements or character 
letters of support that could attest to his honorable conduct that might have mitigated 
the discharge characterization.  The Board found insufficient evidence of in-service 
mitigating factors for the misconduct to weigh a clemency determination. The Board 
determined the applicant has not demonstrated by a preponderance of evidence an 
error or injustice warranting the requested relief, specifically an upgrade of the under 
other than honorable conditions (UOTHC) discharge. Therefore, the Board found 
reversal of the previous board determination is without merit and denied relief. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board found the evidence presented does not demonstrate the existence of a 
probable error or injustice.  Therefore, the Board determined the overall merits of this 
case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket 
Number AR20120005549, on 23 October 2012.

	 
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to 
timely file within the 3-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct. The ABCMR is 
not an investigative body and decides cases based on the evidence that is presented in 
the military records provided and the independent evidence submitted with the 
application. The applicant has the burden of proving an error or injustice by a 
preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing or 
request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 
applicants do not have a right to a hearing before the ABCMR.  The Director or the 
ABCMR may grant a formal hearing whenever justice requires.

3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel. Chapter 10 provides that a 
member who has committed an offense or offenses for which the authorized 
punishment includes a punitive discharge may submit a request for discharge for the 
good of the service in lieu of trial by court-martial. The request may be submitted at any 
time after charges have been preferred and must include the individual's admission of 
guilt. Although an honorable or general discharge is authorized, a discharge under other 
than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states that an honorable discharge is a separation with honor 
and entitles the recipient to benefits provided by law. The honorable characterization is 
appropriate when the quality of the member's service generally has met the standards 
of acceptable conduct and performance of duty for Army personnel or is otherwise so 
meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states that a general discharge is a separation from the Army 
under honorable conditions. When authorized, it is issued to a Soldier whose military 
record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

4.  On 3 September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations, and mitigating factors, when taking action on applications from former 
service members administratively discharged under other than honorable conditions, 
and who have been diagnosed with PTSD by a competent mental health professional 
representing a civilian healthcare provider in order to determine if it would be 
appropriate to upgrade the characterization of the applicant's service.

5.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole, or in part, to:  mental health conditions, including PTSD; TBI; 
sexual assault; sexual harassment.  Boards were directed to give liberal consideration 
to Veterans petitioning for discharge relief when the application for relief is based in 
whole or in part to those conditions or experiences.  The guidance further describes 
evidence sources and criteria and requires Boards to consider the conditions or 
experiences presented in evidence as potential mitigation for that misconduct which led 
to the discharge.

6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations.  Clemency generally refers to relief specifically granted from a criminal 
sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.  This guidance does not mandate 
relief, but rather provides standards and principles to guide Boards in application of their 
equitable relief authority.  In determining whether to grant relief based on equity, 
injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, 
external evidence, sworn testimony, policy changes, relative severity of misconduct, 
mental and behavioral health conditions, official governmental acknowledgement that a 
relevant error or injustice was committed, and uniformity of punishment.  Changes to the 
narrative reason for discharge and/or an upgraded character of service granted solely 
on equity, injustice, or clemency grounds normally should not result in separation pay, 
retroactive promotions, and payment of past medical expenses or similar benefits that 
might have been received if the original discharge had been for the revised reason or 
had the upgraded service characterization.

7.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to 
ensure that an applicant seeking corrective action by the Army Review Boards Agency 
(ARBA) be provided with a copy of any correspondence and communications (including 
summaries of verbal communications) to or from the Agency with anyone outside the 
Agency that directly pertains to or has material effect on the applicant's case, except as 
authorized by statute. ARBA medical advisory opinions and reviews are authored by 
ARBA civilian and military medical and behavioral health professionals and are 
therefore internal agency work product. Accordingly, ARBA does not routinely provide 
copies of ARBA Medical Office recommendations, opinions (including advisory 
opinions), and reviews to Army Board for Correction of Military Records applicants 
(and/or their counsel) prior to adjudication.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230007839


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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